William Gochis, et al., Plaintiffs, Appellants, v. Allstate Insurance Co., et al., Defendant, Appellee, 16 F.3d 12 (1st Cir. 1994)

Plaintiffs-appellants William Gochis, et al., attempt to appeal the district court's grant of summary judgment in favor of defendant Allstate Insurance Co. Because plaintiffs' notice of appeal is ineffective, however, we dismiss for lack of appellate jurisdiction.

Factual and Procedural Background

This case involves a compensation dispute between plaintiffs, seventy-nine former Massachusetts insurance sales agents ("Agents"), and their employer, defendant Allstate Insurance Company ("Allstate"). Agents worked for Allstate pursuant to an Agent Compensation Agreement until Allstate, discouraged by its inability to turn a profit under the Massachusetts insurance regime, ceased doing business in Massachusetts in 1989.

In September 1990, seventy-six¹  of the plaintiffs filed a suit against Allstate alleging, inter alia, breach of the implied covenant of good faith and fair dealing. Allstate moved for summary judgment on two occasions, and the district court granted both motions.² 

The appellate jurisdictional woes of the Agents began when they subsequently filed a timely notice of appeal. Instead of naming all seventy-nine Agents, the caption in the notice of appeal merely listed the appellants as "William Gochis, et al." The appealing Agents were further identified in the body of the notice as "all of the plaintiffs in the above-entitled action."

Agents' counsel was notified by the Clerk's Office that, under Fed. R. App. P. 3(c),³  the notice could be deemed defective as to all plaintiffs other than Gochis. In response to this notification, because the thirty-day period for filing a notice of appeal under Fed. R. App. P. 4(a) (1) had elapsed, Agents' counsel filed with the district court a Fed. R. App. P. 4(a) (5)⁴  motion to extend the time for filing a new notice of appeal. By margin order, and over Allstate's objection, the district court granted the extension. A new notice of appeal naming all seventy-nine Agents was then filed and docketed. Thereafter, Agents' counsel voluntarily filed a motion to withdraw the first notice of appeal. We granted this motion in June 1993.II.

Discussion

On appeal, Allstate claims that the district court erred in granting Agents' motion to extend the time to file a new notice of appeal.⁵  More specifically, Allstate contends that the district court erred in determining that the Agents adequately demonstrated excusable neglect as required under Fed. R. App. P. 4(a) (5). Agents, in response, primarily argue that the district court's grant of their motion was not in error and, therefore, that this appeal should proceed as to all seventy-nine Agents. We think Allstate has the better argument.⁶ 

Our review of a district court's interpretation of Fed. R. App. P. 4(a) (5) is plenary. Pontarelli v. Stone, 930 F.2d 104, 109 (1st Cir. 1991). Where the district court's grant of plaintiff's motion to extend time for filing a new notice of appeal is by margin order and, therefore, without any interpretation of the rule, however, we will ordinarily review its decision to grant a Fed. R. App. P. 4(a) (5) motion for abuse of discretion. See generally id.; cf. Ramseur v. Beyer, 921 F.2d 504, 506 n. 2 (3d Cir. 1990).

B. Excusable Neglect under Fed. R. App. P. 4(a) (5)

As noted above, under Fed. R. App. P. 4(a) (1), notices of appeal in civil cases must be filed "30 days after the date of entry of the judgment ... appealed from." Fed. R. App. P. 4(a) (5) provides a narrow exception whereby delinquent parties may be granted up to an additional 30 days by the district court. To avail oneself of the exception, in circumstances where the need for the extension "results entirely from neglect attributable to appellant, as distinguished from forces beyond her control, appellant must show excusable neglect." Pontarelli, 930 F.2d at 109. As we have often stated, in order to show excusable neglect, appellant must demonstrate unique or extraordinary circumstances. See, e.g., id. at 104; Rivera v. Puerto Rico Tel. Co., 921 F.2d 393, 396 (1st Cir. 1990). We find no such circumstances here.

Agents, in their motion, explained to the district court that their tardiness was caused by a misapprehension of Fed. R. App. P. 3(c)'s specificity requirement. This misapprehension, in turn, was given two explanations: (1) the "names of the plaintiffs were omitted through inadvertence of counsel"; and (2) counsel's failure to name the defendants was the result of counsel's "plausible misconstruction" of the requirements of Fed. R. App. P. 3(c). Neither explanation is sufficient to meet the Fed. R. App. P. 4(a) (5) standard.

In Rivera, we explicitly held that counsel's mistaken or inadvertent failure to name the appellants in a notice of appeal "does not constitute excusable neglect for purposes of Fed. R. App. P. 4(a) (5)" absent unusual or extraordinary circumstances. Rivera, 921 F.2d at 396. Agents argue that the "unusual or extraordinary circumstances" in this case consist of their own "plausible misconstruction" of the requirements of Fed. R. App. P. 3(c). We disagree.

Although we do not completely discount the possibility that a "plausible misconstruction" of Federal Rules may, in some situations, meet the requirements of excusable neglect under Fed. R. App. P. 4(a) (5), Agents' counsel's "misconstruction" of the requirements of Fed. R. App. P. 3(c) can hardly be considered "plausible." As noted above, Fed. R. App. P. 3(c) requires that a notice of appeal "specify" the "parties taking the appeal." In 1987, the Supreme Court stated that "specify" means "name." Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S. Ct. 2405, 2407, 101 L. Ed. 2d 285 (1987) ("The failure to name a party in a notice of appeal is more than excusable 'informality'; it constitutes a failure of that party to appeal.") (emphasis supplied). Moreover, we repeatedly have held that we lack jurisdiction over unnamed appellants. See Rivera, 921 F.2d at 395; Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 317 (1st Cir. 1989) (en banc); Marin-Piazza v. Aponte-Roque, 873 F.2d 432, 433 (1st Cir. 1989); Santos-Martinez v. Soto-Santiago, 863 F.2d 174, 176 (1st Cir. 1988).

As Agents point out, we have, on one occasion, approved a finding that counsel's failure to name each appellant on the notice of appeal constituted excusable neglect. In the case of In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d 940 (1st Cir. 1989), we upheld the district court's grant of a Fed. R. App. P. 4(a) (5) motion where the initial notice of appeal simply stated that "all plaintiffs, through the Plaintiffs' Steering Committee hearby [sic] appeal." Id. at 941. We found the district court did not abuse its discretion by granting the Plaintiffs' Steering Committee, ("PSC"), a team of trial attorneys representing over 2000 plaintiffs, a Fed. R. App. P. 4(a) (5) extension to file a new notice of appeal where 1) there were an extraordinary number of plaintiffs;⁷  2) the PSC in its representative status "existed precisely to represent all the active plaintiffs," id. at 942; and 3) the PSC had previously filed similar appeals in the same litigation without adverse consequences. Id. at 941-42. Clearly, as Agents' counsel conceded at oral argument, no such circumstances are present in the record before us.

Furthermore, Agents' reliance on Lorezen v. Employees Retirement Plan of Sperry and Hutchinson Co., 896 F.2d 228 (7th Cir. 1990), as supporting their "plausible misconstruction" argument, is misplaced. In Lorezen, counsel's neglect was excused because, among other things, his plausible interpretation of the rule at issue had not been foreclosed by the circuit until the twenty-eighth day of the thirty-day appeal period. Moreover, the court found that counsel's interpretation of the rule had been induced, in part, by a confusing motion submitted by opposing counsel. Again, we have no such circumstances before us. Here, counsel's "misinterpretation" of Fed. R. App. P. 3(c) was due to nothing more than counsel's ignorance of the law, something the Lorezen court viewed as inexcusable neglect under Fed. R. App. P. 4(a) (5). Id. at 232 (naming " 'plausible misconstructions, but not mere ignorance, of the law or rules' as one of the types of excusable neglect" under Fed. R. App. P. 4(a) (5)) ( quoting Redfield v. Continental Casualty Corp., 818 F.2d 596, 602 (7th Cir. 1987)) (emphasis supplied).

In sum, because Agents have failed, as a matter of law, to demonstrate any circumstance that the district court could have found to be unique or extraordinary, we find that the district court abused its discretion in extending Agents' time to file a new notice of appeal. Accordingly, we reverse the district court's order granting Agent's Fed. R. App. P. 4(a) (5) extension.

Given the invalidity of the district court's Fed. R. App. P. 4(a) (5) extension, Agents' second notice of appeal is not timely and, therefore, is ineffective to support this appeal. See, e.g., United States v. Robinson, 361 U.S. 220, 229, 80 S. Ct. 282, 288, 4 L. Ed. 2d 259 (1960) (holding that the time limit to file a notice of appeal is "mandatory and jurisdictional"). Agents' counsel argues that despite the case law discussed supra, we still have the authority, under Fed. R. App. P. 2, to suspend the filing requirements. We disagree. Fed. R. App. P. 2 states, in relevant part, that "for ... good cause shown, a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion." (Emphasis supplied). Fed. R. App. P. 26(b), in turn, expressly forbids a court from "enlarg[ing] the time for filing an appeal." See also Torres, 487 U.S. at 317, 108 S. Ct. at 2409. Accordingly, we have no jurisdiction to reach the merits of this action and must necessarily dismiss.⁸  See id. at 317 n. 3, 108 S. Ct. at 2409 n. 3 (holding that failure to comply with the technical requirement of Fed. R. App. P. 3(c) erects a jurisdictional hurdle which can never be " 'harmless' or waived by the court").

Conclusion

Agents' failure to perfect an appeal within the time prescribed by Fed. R. App. P. 4(a) (1) obligates this court to dismiss their appeal for want of jurisdiction. Accordingly, the grants of summary judgment below are final. See Piazza v. Aponte Roque, 909 F.2d 35, 39 (1st Cir. 1990).

Dismissed.